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LORD DURHAM AND HIS ASSAILANTS 1838 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume VI - Essays on England, Ireland, and the Empire 
The Collected Works of John Stuart Mill, Volume VI - Essays on England, Ireland, and the Empire, ed. John M. Robson, Introduction by Joseph Hamburger (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1982).
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LORD DURHAM AND HIS ASSAILANTS
London and Westminster, VII & XXIX (Aug., 1838), 507-12 (2nd ed. only). Headed: “Art. XII. [John George Lambton.] An Ordinance to Provide for the Security of the Province of Lower Canada. Passed by the Governor-General of Canada in Special Council the 28th day of June, 1838. [Parliamentary Papers, 1837-38, XXXIX, 914-16.]” Running titles as title. Signed “A.” Not republished. Identified in Mill’s bibliography as “An article headed ‘Lord Durham and his Assailants’ in the second edition of the same number of the same review”; i.e., as “Penal Code for India” (MacMinn, 51). There are no corrections or emendations in the copy (tear-sheets) in Somerville College. For comment on the essay, see xlii-xlvi above.
Lord Durham and His Assailants
we avail ourselves of a demand for a second edition of this number of our Review, to offer a few brief comments on the factious, unseemly, and in every way discreditable war of words which has been going on in the Houses of Lords and Commons respecting Lord Durham’s ordinances.[*]
There are two modes of canvassing an act of any public functionary. The question may turn either upon the merits, or the technicalities. The point in issue may be, whether the act be right in itself—the most eligible means for attaining the acknowledged ends—and which therefore either is legal, or if it be not, ought to be legal, and should be made so with the least possible delay; or the objection may turn upon the words of the public officer’s commission—the limitations to which his powers have been subjected, the forms and precautions with which he has been surrounded, not in order to weaken his authority for a good purpose (though that may be the incidental effect), but to prevent him from aiming at bad ones.
Now, when a man has been selected to fill a new office; to do a new thing, in new circumstances—circumstances which you in whose behalf he acts do not know, cannot know, do not pretend to know, still less could pretend to foreknow;—when this new thing, which he is sent to the other side of the globe to do, is considered to be so difficult, so delicate, so likely to be frustrated if at all opposed, that to enable him to do it every other constituted authority in the country must be suppressed, every place of public discussion shut up, every possibility of counteraction from every quarter precluded, at any cost, even that of the representative constitution of a free people; in which of the two lights of which we have spoken is it fit that the measures of this officer should first be viewed? Even then, undoubtedly, their substantial merits should not be the only consideration; even then, besides considering whether what he has done is right, it is necessary to consider also whether he had power to do it. But are any words adequate to express the contempt due to a mode of treating matters of high public concernment, which makes the last the sole consideration? which merges the former in it? which passes over the question whether what Lord Durham did be a thing which ought to be done—whether some such thing be not, in circumstances such as he was appointed to deal with, the very thing which he ought to have been empowered to do, which he ought to have been expected to do, which he ought to have been encouraged to do—and makes the preservation of the Canadas and the reconciliation of two embittered parties lately engaged in shedding each other’s blood, subordinate to the grave consideration whether what Lord Durham could lawfully punish, he could lawfully punish as treason, and whether men whom he could lawfully banish, he could lawfully banish to Bermuda?
With men meaning honestly, and having the intellects of statesmen instead of fribbles or legal pedants, the matter would in the first instance have been debated solely on the grounds of substantial justice and policy. The question would afterwards have been conscientiously examined, whether Lord Durham had gone beyond his powers, in order that if he had done so, and his acts were therefore wanting in legal validity, legal validity might be given to them; and the object for which his powers were created might not be defeated either by any technical error of his own, or by a blunder in the terms in which those powers were conferred upon him. For if, under the pressure of alleged necessity, you have confiscated the free constitution of a people and thrust aside all the acknowledged principles of a constitutional government, in order to enable Lord Durham to accomplish certain important ends, and if it should turn out that by this costly sacrifice you did not accomplish the ends, did not enable Lord Durham to adopt the means most conducive to the ends, what will it please your wisdom to do next? To submit, and leave the ends unaccomplished? Or may it perchance occur to you, that if the dearest privileges of a million of free-born human beings have been made perforce to give way to the exigency of the case, some nice scruples about encroachment on the authority of Parliament may do so too? It is becoming, is it not, to be so chary of your own “little brief authority,”[*] when you have made so light, in the very same case, of the most sacred constitutional rights of every one else?
Dismissing this pettifogging mode of dealing with the subject, let us turn to the really important view of it. What has Lord Durham really done? And was it a thing fit to be done, or which may be presumed fit to be done, under the circumstances?
Among so many flights of oratory about the mere form of Lord Durham’s proceedings, about the enormity of his alleged infringement of his powers, by one solitary figure of rhetoric alone was any imputation cast upon the substance of the ordinance; the appeal ad invidiam rested entirely upon a misdescription. It was called an ordinance for putting men to death without trial.
But without trial! Was it not, on the contrary, distinctly stated in the ordinance, that there should be a trial? Not, indeed, for rebellion; the ordinance is one of amnesty for rebellion; amnesty to the men whom it banishes, as much as to those whom it sets free altogether. Not being to be punished for rebellion, it is rather unnecessary that they should be tried for it. The punishment denounced by the ordinance, is punishment for the violation of the ordinance; it is the sanction with which every prohibitive enactment must be accompanied. The ordinance is not a judicial act, it is a legislative act; it is not to punish men for their past conduct, it is to restrain their future conduct; it imputes to them no guilt; it has nothing to do with their guilt, it has to do only with the consequences of their being at large in the colony.
Now we affirm, without fear of contradiction from any one who has even the most elementary notions of human affairs, that if a man be appointed to restore tranquillity in a country after a civil war, and if that person have not the power to command that any twenty-three men, let them be the most virtuous citizens in the country, shall absent themselves from it until their return shall be judged consistent with safety, and not likely to disturb men’s minds—then the appointment of that person is a mockery; and if he be a sane man, he has only been induced to undertake the office by a disgraceful fraud.
We are curious to know what idea the assailants of Lord Durham have formed of the state of a country in which a general insurrection has just been put down by the sword; or of the nature of the work of bringing such a country into a state of pacification. It is very well known what our opinion is of the conduct by which that insurrection was provoked; most unquestionably our own sympathies are not with the victors, but with the vanquished, in that melancholy struggle. However, they were vanquished; upon provocation, either sufficient or insufficient, they threw themselves upon the chances of war, and failed. Lord Durham was then sent out to heal the wound. We presume it was not to be expected that he should begin this task by exactly reversing the state of things which he found on his arrival; by making the vanquished victors and the victors vanquished; by exciting the feelings of triumph in the defeated party, of bitter indignation and resentment in that which is at present predominant. His part was not to excite, but to calm all feelings either of triumph or of mortification. His office was that of a peacemaker—of a mediator. It was no business of his who was right, or who most wrong, in the conflict which preceded; but how to prevent any future conflict. It was his duty to avoid irritating any party; to do nothing which could be construed by either side as a declaration in its favour; to shape every one of his proceedings so as in no way to impede the return of both parties to that tranquil state of mind, in which it might be possible to satisfy both by conceding what is really just in the demands of each, and nothing but what is just.
Now, without pretending to discuss the actual state of feeling in Canada, which, like most of our readers, we are much too far off to judge of; we pronounce it abstractedly impossible, that in any country whatever, the leaders of a popular party which has just attempted an insurrection could be at large in the country without retarding the progress of the public mind to this calm and reasonable state. Mr. Papineau and some others named in the ordinance may not have participated in the insurrection; or they may have participated in it, and may nevertheless be the most upright and purest patriots to be found in the colony. All this is really nothing to the point; they are the leaders of an insurgent party, and, as such, their absence is necessary, so long as their presence would be a hindrance to that reconciliation of parties, which, now that their party has been beaten, is the most desirable thing remaining, even for themselves. The measure is an ostracism, not a punishment: they are banished because they are dangerous, not because they are criminal. But if they are to be banished, there must be a penalty for returning from banishment; and the penalty is capital, because that is the usual penalty of state offences; and properly so, since any inferior punishment might be a premium on the offence, while, by denouncing the highest penalty of all, no necessity is incurred of actually inflicting it.
If indeed there were the slightest colour for the supposition that even one of these twenty-three men were banished for ever; if it were not obvious from the whole tenor of the ordinance, as well as from all which is known of Lord Durham, his advisers, and his purposes, that the sole object of it is, as the ordinance itself declares, “to provide for the present security of this province” [p. 914]; if the door were not studiously and widely opened to let in even Mr. Papineau himself to-morrow, if he should be able to satisfy Lord Durham that his influence would be used to restore peace to the public mind instead of disturbing it; we could then understand the passionate invectives of Mr. Leader, which are at present as unintelligible to us as they are, for his own sake, lamentable.[*]
Mr. Leader cannot so far mistake our feelings towards him as to suppose that we entertain any sentiment inconsistent with the most entire respect for his principles and intentions, and the warmest good wishes for his future political career, which it would grieve us to see compromised. Almost alone in the periodical press we stood by him,[†] when to do so might be deemed an act of courage on our part, when at least it would have been much more to our interest to do otherwise. We were not bound to identify ourselves with the opponents of the Canada Act;[‡]we never opposed it; we declared it to be right or wrong according as it should be executed. Our practical views differed as widely from Mr. Leader’s as our language did, and most persons in our situation would have taken as much pains to separate their cause from his, as we took to avoid all semblance of separation. For great is the virtue of a passing word in reproof of “extreme views” and “intemperate language” on one’s own side, for giving an air of moderation to one’s sentiments: to say a little on one side and a little on the other is the only way to present an appearance of impartiality to vulgar eyes. We spurned the unworthy advantage. And the justice which we then claimed for Mr. Leader, we now owe to those whom he has attacked, and to whom we much mistake his character if he do not soon feel that ample reparation is due from him.
If Lord Durham and his official advisers are the men Mr. Leader represents them, he may rely on it they will soon give him fairer cause of attack. The test of what they are, will be their plan for the permanent settlement of Canada; let us wait to see what that is—whether its basis be the predominance of an oligarchical party, or the removal of whatever is justly obnoxious to either party. If the former be the result, we shall deal the same measure to Lord Durham which we should have dealt to any other man through whose instrumentality a similar act of tyrannical injustice had been committed by a Whig or a Tory Ministry—and shall lament the failure of the hopes which we have built upon him, not only for justice to Canada, but for benefits to the empire and to reform, of which this is not the place to speak. But if Lord Durham fail us, have we anything better to expect from his successor? Is it imagined, for instance, that if he could be sufficiently damaged, the government of Canada would fall into the hands of Lord Brougham? For our part, deeming such a dénouement not particularly probable, and having no very great confidence that the change would be an improvement, we do not see the wisdom of declaring war against the only man who has it in his power to do what we wish done, in order to put in his place somebody who would almost certainly do the exact opposite. It is intelligible that the Tories, factious and envenomed beyond all recent precedent as a large portion of them have shown themselves during the last half-year, should strive, per fas et nefas, to lower the public estimation of the only man in the ranks of their enemies whom they really fear. But what is gain to them is bitter loss to the people; and Lord Durham is the very last man upon whom any one in earnest for Reform should permit himself, at the present time, to be betrayed into any act of hostility not called for by an imperious duty.
[[*] ]See PD, 3rd ser., Vol. 44, cols. 1019-35 (7 Aug., 1838), 1056-1102 (9 Aug., 1838), 1127-46 (10 Aug., 1838), 1211-92 (14 Aug., 1838), 1296-1310 (15 Aug., 1838).
[[*] ]Shakespeare, Measure for Measure, II, ii, 118.
[[*] ]John Temple Leader, Speech on Canada (14 Aug., 1838), PD, 3rd ser., Vol. 44, cols. 1242-50.
[[†] ]See John Stuart Mill, “Radical Party and Canada,” pp. 434-5 above.
[[‡] ]1 Victoria, c. 9 (1838).